DHS Security Regs For High Risk Chemical Facilities

Apr 2: The U.S. Department of Homeland Security (DHS) released an interim final rule that imposes for the first time comprehensive Federal security regulations for high risk chemical facilities. The department sought and reviewed comments from state and local partners, Congress, private industry, and the public to develop consistent guidelines using a risk-based approach. The new rule gives the department authority to seek compliance through the imposition of civil penalties, of up to $25,000 per day, and the ability to shut non-compliant facilities down. Homeland Security Secretary Michael Chertoff said, “The safety and security measures that we take need to be tough and balanced. We will significantly reduce vulnerability at high-consequence chemical facilities, taking into account important efforts in certain states.”

The department will require owners of chemical facilities housing certain quantities of specified chemicals to complete a preliminary screening assessment that determines the level of risk associated with the facility. If a chemical facility preliminarily qualifies as high risk, its owners will be required to prepare and submit a security vulnerability assessment and site security plan. Submissions will be validated through audits and site inspections. The department will provide technical assistance to facility owners and operators as needed. Security standards will be required to achieve specific outcomes, such as securing the perimeter and critical targets, controlling access, deterring theft of potentially dangerous chemicals, and preventing internal sabotage.

Covered facilities contacted by the department will have 120 days from the publication of the regulation in the Federal Register to provide information for the risk assessment process. Other requirements follow that time period. Additional facilities will follow a similar timeframe after future Federal Register publications.

Some states have existing laws for regulating chemical facilities. Only state laws and requirements that conflict or interfere with these regulations, or the purpose for the regulations, will be preempted. Currently, the department has no reason to conclude that any existing state laws are applied in a way that would impede the federal rule. DHS said that in proposing a regulation for comment and then publishing an interim final rule prior to April 4, the Department has met an aggressive timeline set by Congress. The final regulation will be published later this week in the Federal Register. Comments related only to the addition of Appendix A, DHS Chemicals of Interest, to part 27 will be accepted for 30 days after publication in the Federal Register.

Senator Frank Lautenberg (D-NJ) called the Bush Administration's new chemical security regulations "unacceptable" saying they would preempt New Jersey and other states with stronger chemical security laws from protecting their communities. He said, "This is unacceptable. It prevents New Jersey and other states from continuing to pursue stronger chemical security laws. Congress is on record supporting the right of states to protect their communities from a chemical attack. It's time for the Federal Government to follow Congress' lead and make sure our states have that right."

Last week, the Senate passed the FY 2007 Supplemental Appropriations Bill with a chemical security provision authored by Lautenberg which was strongly opposed by the American Chemistry Council (ACC). Lautenberg said his language would preserve states' rights to craft stronger chemical security laws than the Federal government, if they deem those laws necessary to protect their residents. Lautenberg said Democrats, Republicans and the National Governors Association voiced their support for his language in the Supplemental.

ACC issued a statement on the new DHS regulations saying, “The nation is safer today, thanks to landmark federal regulations that will drive enhanced security protections for America’s chemical industry. This rule is the culmination of years of hard work by members of Congress, the Department of Homeland Security and industry leaders working cooperatively to improve national security.

“For the first time, a federal agency is authorized to enforce national risk-based performance standards to ensure that chemical facilities assess security vulnerabilities and implement security plans to address them. Equally important, DHS has clear authority to inspect these facilities and apply strong penalties, including facility shutdowns, for those that fail to act. These new regulations will complement existing state programs and the significant security enhancements already undertaken voluntarily by our members to protect the chemical industry and the nation."

Greenpeace USA issued a statement saying, “The Department of Homeland Security's (DHS) new regulations on chemical plant security are too little too late. As a result, millions of Americans living as far as 20 miles from ultra-hazardous chemical plants will remain at risk until Congress enacts permanent legislation. The DHS has previously identified 4,391 chemical plants that put 1,000 or more people at risk inside chemical 'kill zones.' It remains to be seen how or when these facilities will be prioritized for the minimal fence-line security the regulations allow.

"In a clumsy attempt to lesson a confrontation with the Congress, DHS Secretary Chertoff sent a letter (April 1) to Congress claiming that the DHS narrowed their regulations barring states from setting stricter security standards. However, the new regulations continue to claim broad authority to preempt any "state law, regulation or administrative action" even though no such authority exists in the 740 word law that their regulations are based upon..." Greenpeace points out that the DHS rules are based on language in the 2007 DHS appropriations bill which it says was enacted with expectation that the next Congress would enact permanent legislation before it expires in October 2009.

Access a release from DHS (click here). Access an overview and links to the 226-page regulation and Appendix A (click here). Access a release from Senator Lautenberg (click here). Access a release from ACC with links to additional information (click here). Access a release from Greenpeace (click here). Access the WIMS eNewsUSA Blog for a history of information on the chemical facility security regulations issue (click here). [*Haz, *Toxics]